Mungeshwar Sahoo, J.@mdashBoth the Second Appeals No. 212 of 2011 and 225 of 2011 are directed against the same Judgment and Decree dated 19.01.2011 passed by the learned Addl. District Judge-cum-Fast Track Court No. II, Sheohar at Sitamarhi in title appeal No. 29 of 2002 whereby the learned lower appellate Court allowed the appeal in favour of Notified Area Committee holding that the Notified Area Committee, Sheohar will not be bound by the Decree of the trial Court dated 30th July, 1997 passed by the learned Munsif, Sheohar in Sitamarhi in title suit No. 13 of 1995. The plaintiffs appellants together filed title suit No. 13 of 1995 for declaration of their title and possession over the suit land and further for restraining the defendants by permanent injunction from interfering in possession over the suit land measuring 38 decimal. The plaintiff appellants claimed the aforesaid relief alleging that the C.S. plot No. 3135 measuring 40 decimal belonged to Sheohar Raj and was recorded as ditch and was in his possession and C.S. plot No. 3134 measuring 79 decimal was recorded as parti. Because of lapse of time, the ditch filled up and the ex. landlord Sheohar Raj settled 38 decimal, i.e., 7.5 katha in the name of grand father of the plaintiff namely, Shiv Govind Sah through rent receipt on payment of Najrana for agricultural purpose. In confirmation of said settlement, a Khista Patta dated 22.11.1941 was executed by ex. landlord in favour of Shiv Govind Sah. Shiv Govind came in possession and started cultivating the land. At the time of vesting, return was submitted. Shiv Govind Sah had constructed a house over the land comprised within R.S. plot No. 5529 measuring 1 katha which he had purchased from Laxman Sah for himself and minor son Ram Nandan Sah and major son Narain Sah. For constructing the house, Shiv Govind Sah cut earth from the settled land as a result of which the land became ditch and the plaintiff grow Kumbhi plant. During revisional survey, the said 38 decimal land was wrongly shown in the map of R.S. plot No. 5527 and 5168/6440. Application was filed before the Consolidation Authority and the correction was made and name of plaintiff was recorded. The defendants are trying to construct a bus stand and Sulabh Shauchalaya over the plaintiff settled land in the suit.
2. No written statement was filed. The trial Court accordingly decreed the suit ex. parte. Appeal was filed by the defendants on merit. Since appeal was time barred, an application for condoning the delay was filed and provisionally, the limitation was condoned by the lower appellate Court and ultimately after hearing the parties, allowed the limitation application recording finding that there was no notice to the appellant No. 2, i.e., Notified Area Committee Sheohar in the title suit. Therefore, the appellate Court recorded a finding that the Judgment and ex. parte decree will not bind the Notified Area Committee, appellant No. 2, and accordingly allowed the appeal.
3. At the time of admission of these Second Appeals, the following substantial questions of law were formulated on 6th July, 2012 in Second Appeal No. 212 of 2011 and on 18.08.2011 in Second Appeal No. 225 of 2011:
(i) Whether when the Title Appeal No. 29 of 2002 filed against the Judgment and Decree dated 30.07.1997 was clearly barred by limitation, the judgment and decree of the appellate court can be sustained in law when the same have been passed without finally condoning the delay on existence of sufficient cause?
(ii) Whether the appellate Court below has committed error in law by simply declaring that the decree passed by the trial Court is not binding upon some of the respondents without in the said circumstances remanding the matter to the trial for fresh adjudication and whether such a finding by the appellate Court is contrary to the provisions of Order 9 Rule 13 C.P.C.?
4. During the course of hearing of both the Second Appeals, the learned counsel for the appellant in Second Appeal No. 212 of 2011 raised another substantial question of law, therefore, finding prima facie that the said substantial question of law is also involved in this second appeal, the substantial question of law was formulated on 14th August, 2013 is as follows:
(i) Whether the Judgment and Decree of he lower appellate Court is vitiated because of the fact that the lower appellate Court dismissed the appeal filed by the present respondent No. 2, 3 and 4 and recorded the finding in favour of the present appellant on merit but set aside ex-parte Judgment and Decree of the trial Court which was passed on merit only on the ground that no summons were served on the present respondent No. 1 who was appellant No. 2 in the Court below, particularly when the ground for non-service of summons was not available to the appellant in the appeal u/s 96 of the CPC and moreover the lower appellate Court has without considering the fact that the suit filed by the present appellant was for declaration of title and confirmation of possession held that notice u/s 377 of the Bihar and Orissa Municipal Act was necessary?
5. The learned counsels appearing on behalf of the appellants in both the Second Appeals submitted in the same line, therefore, their submissions are noted herein below as the submissions of the appellants. The learned counsels for the appellants submitted that the title appeal No. 29 of 2002 was clearly barred by law of limitation but the lower appellate Court allowed the appeal of Notified Area Committee, Sheohar without finally condoning the delay on existence of sufficient cause. The present appellants had the right to oppose the provisional condonation of delay. Therefore, they appeared and filed a rejoinder/counter affidavit to the limitation application wherein they clearly averred that the appellants had the knowledge of the pendency of the suit and notice had validly been served on them but the lower appellate Court in the impugned Judgment without even referring to the reply/counter affidavit to the limitation application allowed the limitation application holding that notice was not validly served on Notified Area Committee, Sheohar. So far the finding of the lower appellate Court for condoning the delay is concerned, it is based on no evidence and without discussing the reply by the appellant, therefore, the finding is perverse. The learned counsels further submitted that the delay of about more than 4 years was provisionally condoned by the lower appellate Court. An ex-parte order condoning the delay is always subject to right of the respondent to be heard in the matter of condonation of delay. Therefore, the appellants filed reply to the limitation application but without considering the reply, order was passed which is unsustainable in the eye of law. According to the learned counsels the delay cannot be condoned in absence of acceptable explanation which is condition precedent to condone the delay and the same principle is applicable in case of State or its instrumentality. Unless the delay is condoned, the order cannot be passed on merit of the appeal because the Court had no jurisdiction to pass any order on the merit of the appeal because it is time barred and as such there is no proper legal presentation of memo of appeal before the Court. In support of the above submission, the learned counsels for the appellants relied upon various decisions of the Hon''ble Supreme Court in connection with principle of condonation of delay such as:
(i)
(ii): AIR 1998 SC 2276
(iii)
(iv
(v)
(vi)
(vii)
(viii) AIR 1917 Privy counsel 179 and many other decisions.
6. The learned counsels further submitted that the appellants of title appeal made false statement with a view to get the delay condoned and they approached the appellate Court with unclean hand. Therefore, the limitation application should have been rejected by the lower appellate Court. The learned counsels further submitted that the finding arrived by the lower appellate Court regarding the condonation of delay is based on non-consideration of material evidences and/or suffers from erroneous approach, therefore, is perverse. In support of the aforesaid two submissions, the learned counsels relied upon the decisions which are as follows:
(i)
(ii)
(iii)
(iv)
7. So far the second substantial question of law is concerned, the learned counsels for the appellant submitted that the lower appellate Court found that the Judgment and Decree of the trial Court was ex-parte decree without service of notice. In such circumstances, the lower appellate court should have set aside the Judgment of the trial Court and should have remanded the matter to the trial Court for a fresh decision after giving opportunity to the Notified Area Committee, Sheohar but the lower appellate Court held that the ex-parte Judgment and Decree passed by the trial Court is not binding on the Notified Area Committee, Sheohar. Therefore, the Judgment and Decree passed by the lower appellate Court is unsustainable.
8. So far the substantial question of law formulated at the time of hearing on 14.08.2013 is concerned, it is submitted that lower appellate Court decided the appeal on merit in favour of the present appellants but has wrongly set aside the ex-parte Judgment and Decree of the trial Court which was passed on merit. According to the learned counsel, the ground that no summons were served on appellant No. 2, Notified Area Committee, Sheohar was not available to the appellant before the lower appellate Court in appeal. This point could have been raised in a proceeding under Order 9 Rule 13 CPC. The lower appellate Court also wrongly held that notice u/s 377 of the Bihar and Orissa Municipal Act was necessary. According to the learned counsels in the present facts and circumstances of the case when the act of the respondent herein was not taken within the Municipal Act, no notice was necessary, particularly when the plaintiff is praying for declaration of title.
9. Over and above, the above submission the learned counsels for the appellant during the hearing of both the Second Appeals submitted that the Notified Area Committee, Sheohar was constituted by fresh Notification under Notified Area Committee, Sheohar Act on 19.7.1994. The suit was filed in 1995. During the pendency of the appeal the Notification constituting Notified Area Committee, Sheohar was held void by this Court in C.W.J.C. No. 1280 of 1999 reported in
10. It will not be out of place here to mention that an application being I.A. No. 7980 of 2011 was filed by Executive Officer, Sheohar Nagar Panchayat and Chairman Nagar Panchayat, Sheohar for being added as party in this second appeal and after hearing the parties by terms of order dated 12.07.2013 both of them were made respondent No. 8 and 9 in Second Appeal No. 225 of 2011 on the ground that the rights and liabilities of Notified Area Committee, Sheohar which was represented by respondent No. 1 to 4 has devolved on the Nagar Parishad constituted by Notification dated 28th March, 2002.
11. The learned senior counsel, Mr. S.S. Dwivedi, appearing on behalf of the respondent No. 8 and 9 submitted that whatever argument made by the appellant with regard to condonation of delay is concerned, are not applicable in the present case in the facts and circumstances. According to the learned counsel, all the decisions referred by learned counsel for the appellants are well settled principle of law and respondent are not disputing the settled principle of law. The lower appellate Court held that appellant No. 1, 3 and 4 before the lower appellate Court had the knowledge about the pendency of the suit and the ex-parte decree, therefore, their appeal has been dismissed. So far appellant No. 2, i.e., Notified Area Committee, Sheohar is concerned, the lower appellate Court after hearing the parties in the impugned Judgment has condoned the delay. At the time of admission of title appeal, the delay was provisionally condoned, therefore, the present appellants had the right to be heard. Accordingly they filed reply/rejoinder. In the reply/rejoinder, they never annexed any document in support of their contention that the Notified Area Committee, Sheohar had also the knowledge about the pendency of the suit or the ex-parte decree. The decisions relied upon by the learned counsel for the appellant regarding non-consideration of reply or that finding of fact recorded without considering evidence cannot be interfered with is not applicable in the present case. The learned counsel further submitted that the lower appellate Court has not set aside ex-parte decree on the ground that no notice was served but the lower appellate court held that the ex-parte Judgment passed by the trial Court was not according to law and the trial Court could not have proceeded hearing of the suit ex-parte without being satisfied that summons were validly served on Notified Area Committee, Sheohar. Notified Area Committee, Sheohar was only interested in suit and State had nothing to do after constitution of Notified Area Committee. The learned counsel further submitted that the Notified Area Committee, Sheohar filed the appeal along with State of Bihar and authorities under the State of Bihar jointly. In such circumstances, there cannot be any presumption that because the State of Bihar and the S.D.O. had the knowledge about the pendency of the suit or ex-parte decree, the Notified Area Committee, Sheohar had also the knowledge because S.D.O. was the chairman of it. No evidence was produced before the lower appellate Court in support of the fact that summons was validly served or that Notified Area Committee, Sheohar had the knowledge about the pendency of the suit or the ex-parte decree. In such circumstances, the finding recorded by the Courts below cannot be set aside in Second appellate jurisdiction. The lower appellate Court has considered this fact and then recorded that the trial Court no where has recorded its satisfaction that summons was validly served by Notified Area Committee, Sheohar. In view of the above fact, the first substantial question of law formulated is liable to be answered against the present appellant.
12. So far the second substantial question of law is concerned, the learned counsels submitted that no doubt the lower appellate Court found that ex-parte Judgment and Decree passed by the trial Court is illegal but instead of remanding the matter to the trial Court wrongly held that the Judgment and Decree of the trial Court will not be binding. The learned counsel, therefore, submitted that what should have been done by the lower appellate Court can be done by this Court answering the second substantial question of law in favour of the appellant.
13. So far the substantial question of law formulated at the time of hearing of the appeal is concerned, the learned counsel submitted that if the second substantial question of law is answered in favour of the appellant, the mater is required to be remanded back to the trial Court after setting aside the appellate Court Judgment. In such circumstances, the finding on the question of merit regarding service of notice u/s 377 of Municipal Act is uncalled for because it will affect the rights of the parties. The learned counsel further submitted that in fact the lower appellate Court has set aside the ex-parte decree holding that nowhere the trial Court recorded its satisfaction regarding the service of summons on appellant No. 2. According to the learned counsel before proceeding to decide the case ex-parte, it was incumbent upon the trial Court to have satisfied and accepted the service of summons on appellant No. 2 as valid service then only he could have fixed the case for ex-parte hearing. The lower appellate Court found that there is no such order either passed under Order 5 Rule 19 or 19A or Order 9 Rule 6. Therefore, the Judgment of the lower appellate Court regarding non-service of summons on appellant No. 2 or that the trial Court could not have passed ex-parte decree cannot be interfered with in second appellate jurisdiction. The lower appellate Court has not set aside the trial Court Judgment only on the ground that the summons was not served on the appellant No. 2. Even if there is no proper warding in the Judgment of the lower appellate Court the meaning of the Judgment is that the trial Court had no jurisdiction to decide the matter ex-parte without recording any order to its satisfaction about service of summons. Moreover, no evidence was produced or pressed by the present appellants before the lower appellate Court in support of the case that appellant No. 2 had the knowledge. In such circumstances while sitting in second appellate jurisdiction, this Court cannot record a finding after appreciating the evidence that the appellant No. 2 had also the knowledge about the pendency of the suit or the ex-parte Judgment and Decree of the trial Court.
14. So far the submission of the learned counsels for the appellant that the appeal of the Notified Area Committee, Sheohar is not maintainable, the learned counsel for the respondent No. 8 and 9 submitted that this question was never raised before the lower appellate Court. Moreover, now, when the Nagar Panchayat has been added as respondent, this question has become academic only. Had this question been raised before the lower appellate Court, the present respondent No. 8 and 9 could have approached the lower appellate Court for being added as appellant but now at this stage after the respondent No. 8 and 9 are being added in the second appeal only on this technical reason, the appeal cannot be held to be not maintainable. The learned counsel further submitted that the plaintiff himself approached the Court without unclean hand and produced forged and fabricated document with a view to claim title on the land of the Notified Area Committee which was ditch as has been admitted in the plaint itself which has now devolved on Nagar Panchayat. Now, after obtaining the ex-parte decree, the appellants are fighting to their tooth and nail on technical grounds, i.e., the limitation was condoned ex-parte or that the reply was not referred to while condoning the delay or that there were evidences on record or that the appeal was not maintainable etc. On these grounds, the learned counsel submitted that none of the points raised by the learned counsel for the appellant are substantial question of law and, therefore, the appeal is liable to be dismissed with exemplary cost.
15. From perusal of the lower appellate Court Judgment, it appears that there was delay in filing the appeal before the lower appellate Court, therefore, a limitation application was filed by the appellant. By terms of order dated 21.11.2002, provisionally, the delay was condoned by the appellate Court and it was directed that the same shall be finally heard at the time of hearing of the appeal. After notice, the present appellants who were respondent in the Court below appeared and filed a rejoinder and objection to the limitation application. In the said rejoinder, it was stated that the appellants had the knowledge about the pendency of the suit. AGP was appearing on behalf of all the appellants in the Court below and was praying for time. Therefore, they prayed that ex-parte order dated 21.11.2002 be recalled. However, it appears that the said application was not pressed, therefore, at the time of hearing of the title appeal, limitation was considered by the lower appellate Court. The lower appellate Court found that the appellant No. 1, 3 and 4, i.e., the State and State authorities had the knowledge about the suit and they were represented by AGP in the suit and even they had filed pairvi. Therefore, the limitation application in relation of appellant No. 1, 3 and 4 was rejected and the lower appellate Court with respect to appellant No. 2 held that from perusal of the record, it appears that the lower Court nowhere declared that the notice on appellant No. 2, i.e., Notified Area Committee, Sheohar, was validly served, therefore, appellant No. 2 had no knowledge about the suit. The appellate Court also recorded clear finding that there is nothing on record to show that notice was validly served or that appellant No. 2 had the knowledge. So far this finding that the appellant No. 2 had no knowledge about the suit is concerned, is a finding of fact. Because of the fact that this substantial question of law has been formulated, I personally perused the ordersheet of the trial Court. It appears that the first ordersheet (the date is not being mentioned because the dates are not clear) shows that the plaint was presented and the next date was fixed for 11.07.1995. On that day, application for waiving service of notice u/s 80(2) C.P.C. and injunction application was filed. The learned Munsif, waived the service of notice holding after appearance of the defendant, the matter will be heard finally and directed to issue notice in injunction matter. In the third ordersheet, it appears that some application was filed by CO., Sheohar dated 19.07.1995. The next ordersheet shows that the service report was received but it is not clear as to whether the notice was validly served or not on all the defendants. It is mentioned in the said ordersheet that the Presiding Officer was on leave, therefore, the next date was fixed for 24.7.1995. Thereafter, the ordersheet shows that the plaintiff filed haziri and thereafter the defendants were being granted time for filing show cause. It appears that AGP had appeared on behalf of the State authorities. Subsequent ordersheet of the trial Court shows that the plaintiff filed haziri and the defendants filed haziri. There is no specific order as to whether notice was validly served on Notified Area Committee, Sheohar or not. As stated earlier, the service report was received on which date, the Presiding Officer was on leave. The said service report was never placed before the Presiding Officer and the Presiding Officer nowhere accepted the service report declaring that the summons have been validly served. The learned lower appellate Court, therefore, held that the appellant No. 2 had no knowledge about the pendency of the suit.
16. So far the submissions of the learned counsel that the lower appellate Court has wrongly mentioned that the trial Court has not accepted under Order 5 Rule 19 and 19A of C.P.C. is concerned, it may be mentioned here that the provision has wrongly been stated by the lower appellate Court. According to Order 9 Rule 6a inserted by amendment in the year 1976 with effect from Ist February, 1977 is that if it is proved that the summons was duly served, the Court may make an order that the suit be heard ex-parte. Therefore, merely because wrong provision has been quoted by the lower appellate Court, the Judgment cannot be said to be vitiated. In view of the order 9 Rule 6 Clause (a), it was the mandatory duty of the Court to proceed ex-parte only, if it is proved that the summons was duly served. As stated above from the ordersheet, there is nothing to show that the concerned trial Court ever recorded any satisfaction to the effect that the summons have been validly served on appellant No. 2. In such circumstances, it was the onus on the part of the plaintiff to have proved this fact that appellant No. 2 had also got the knowledge of the suit. In rejoinder and objection to the limitation application, no documents have been annexed. In other words, there was no evidence before the lower appellate Court. From perusal of the Judgment, it appears that during the hearing of the appeal, the plaintiff never referred to or pressed the relevant documents which are being pressed before this Court in connection with the limitation matter otherwise the lower appellate Court should have referred this objection or argument of the learned counsel for the plaintiff. This fact is further strengthen from the memo of appeal that nowhere this ground has been taken by the appellant that they in fact pressed their rejoinder/objection and in connection with that they also referred to the ordersheet and the letters and the Pairvi or the Vakalatnama before the lower appellate Court but the lower appellate Court has not considered the same. Now, therefore, in the second appellate jurisdiction, the submission of the learned counsel to the effect that the lower appellate Court has not even referred to the objection/rejoinder or that the relevant evidences, i.e., the ordersheet or the pairvi or the letter cannot be entertained. Moreover, as stated above, these are all questions of fact. It is not the case of the appellant that the finding recorded by the lower appellate Court to the effect that there is no order of the trial Court accepting the summons to have been validly served is incorrect. Therefore, only because no reference has been made regarding the objection, the Judgment cannot be said to be vitiated.
17. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court finally heard this limitation matter and then at paragraph 8E allowed the limitation application so far it relates to the appellant No. 2. In such circumstances, it cannot be said that the lower appellate Court has not condoned the delay. From perusal of the paragraph 8 onwards the lower appellate Court has considered all the ordersheet and the steps taken by AGP/AGP I/c and thereafter recorded this finding.
18. So far the submission of the learned counsel for the appellant that the appellants before the lower appellate Court approached the Court with unclean hand by suppressing the fact that notice was validly served is concerned, again it can be said that without any mini trial regarding as to whether notice was validly served or not or that appellant No. 2 had the knowledge of the suit, in second appellate jurisdiction, no finding can be recorded that in fact the appellant No. 2 before the lower appellate Court had the knowledge of the suit and therefore, he approached the lower appellate Court with unclean hand. As stated above, all these matters are finding of fact and it is supported by the ordersheet of the record. So far evidences which are being pressed now are concerned were never pressed before the lower appellate Court. In other words, the lower appellate Court was not invited to consider the said letters or the other steps taken by AGP. Moreover, it appears that Vakalatnama was filed in the suit on behalf of the BDO only. The submission of the learned counsel for the appellant that S.D.O. had the knowledge, therefore, it can be said that Notified Area Committee, Sheohar had also knowledge as S.D.O. is the Chairman of Notified Area Committee, Sheohar is concerned, it may be mentioned here that this is not a direct evidence. The appellants are insisting the second appellate Court to presume a fact, i.e., knowledge of pendency of suit by Notified Area Committee, Sheohar. Therefore, I do not agree with the learned counsels for the appellant.
19. So far the decisions relied upon by the learned counsels for the appellant are concerned, it appears that almost all the decisions relating to the principles enunciated by the Hon''ble Supreme Court and the matters for consideration while dealing with limitation application settled by the Hon''ble Supreme Court have been relied upon by the appellant. So far these decisions relied upon by the appellant are concerned, there is no dispute about the settled principle of law but the principle will apply on the facts of each case and no strate jacket formula can be framed as has been held by the Hon''ble Supreme Court in the case of
34. Liberal construction of the expression ''sufficient cause'' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect ''sufficient cause'' as understood in law.
35. The expression ''sufficient cause'' implies the presence of legal and adequate reasons. The word ''sufficient'' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when one, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
20. Further in the case of
14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribed a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression "sufficient cause" employed in Section 5 of the Limitation Act, 1963 and similar other statues is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for codonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate
16. In dealing with the applications for condonation of delay filed on behalf of he State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay.
21. Since the decisions relied upon by the appellants are well settled principle of law regarding limitation, it is not necessary to deal with all the decisions separately. It can be summarized that there is no strate jacket formula and the matter of consideration will be different depending on the facts and circumstances of particular case. Here as stated above, the lower appellate Court found that the trial Court did not record any satisfaction regarding service of summon on the appellant No. 2, i.e., Notified Area Committee, Sheohar and, therefore, recorded the finding that appellant No. 2 had no knowledge about the suit. In such circumstances, there is no error in the finding of the lower appellate Court. In my opinion, the lower appellate Court has rightly condoned the delay with respect to the appeal of the appellant No. 2.
22. So far the substantial question of law formulated at the time of hearing regarding the availability of ground for setting aside ex-parte decree in appeal u/s 96, i.e., according to the appellant in appeal, the appellant cannot make a case that the ex-parte Judgment and Decree be set aside because of non service of summons. So far this submission of the learned counsels for the appellants is concerned, it may be stated here that the lower appellate Court has not set aside ex-parte Judgment and Decree of the trial Court because of non-service of summons but from perusal of the lower appellate Court Judgment, it appears that the lower appellate Court has come to the conclusion that the trial Court has not recorded any order, i.e., his subjective satisfaction about the service of summons. As discussed above, I have personally gone through the record of the trial Court. Nowhere the trial Court recorded that summons have been validly served on Notified Area Committee, Sheohar. Order 9 Rule 6 Clause (a) has been inserted by amendment as stated above and after amendment the Court cannot proceed ex-parte without passing an order of service of summons. This subjective satisfaction of the Court as required under Order 9 Rule 6 Clause(a) C.P.C. applies to first hearing only. If the Court is satisfied to the effect that it is proved that the summons have been duly served then only the Court can proceed to hear the suit ex-parte. If this provision is not complied with then the subsequent order passed by the trial Court itself were without jurisdiction. In other words without recording the satisfaction as required under Order 9 Rule 6 Clause (a), the Court could not have passed the ex-parte decree against Notified Area Committee, Sheohar. Therefore, the ex-parte Judgment and Decree itself is against the provision of the Code of Civil Procedure. Now, can it be said that the Judgment contrary to law should be allowed to stand only on the ground of technicalities? In such circumstances, it cannot be said that in fact the lower appellate Court has set aside the ex-parte Judgment and Decree of the trial Court only because no summons were served on the appellant No. 2.
23. So far the submission of the learned counsels for the appellant that appeal by the Notified Area Committee, Sheohar was not maintainable before the lower appellate Court is concerned, it may be mentioned here that no such plea was raised before the lower appellate Court. I have already stated above that respondent No. 8 and 9 have already added as party respondent in this appeal. Had this point being raised before the appellate Court the lower appellate Court could have decided this matter but after participating before the lower appellate Court without raising the maintainability of the appeal now before the second appellate Court, the appellants cannot be permitted to raise this question, particularly when the authorities on whom the rights and liabilities has devolved, i.e., the Nagar Panchayat, Sheohar have already been added as respondent No. 8 and 9 in the Second Appeal. They have already stepped into shoes of Notified Area Committee, Sheohar.
24. So far the second substantial question of law formulated at the time of admission is concerned, the learned counsel for the respondent submitted that he cannot support this portion of the finding of the lower appellate Court. The learned counsel submitted that the lower appellate Court should have after setting aside ex-parte Judgment and Decree remanded the matter to the trial Court for a fresh decision according to law but the lower appellate Court has reversed the same and held it will not be binding on the appellant No. 2.
25. In view of my above discussion, the first substantial question of law and the substantial question of law formulated at the time of hearing are answered against the appellant and in favour of the contesting respondents. So far second substantial question of law formulated at the time of admission is concerned, it is answered in favor of the appellant and accordingly, the finding of the lower appellate Court to the effect that the ex-parte Judgmental and Decree will not be binding on appellant No. 2 (Notified Area Committee, Sheohar) is modified to the extent that the ex-parte Judgment and Decree of the trial Court is set aside and the matter is remanded to the trial Court for a fresh decision according to law after giving opportunity to the present respondent No. 8 and 9 according to law.
26. The interlocutory applications, i.e., I.A. No. 3386 of 2012 filed by the appellant is under Order 39 Rule 1 & 2 C.P.C. and I.A. No. 4262 of 2011 is also an injunction application filed by the appellant.
27. Since the matter is remanded, the trial Court for proceeding according to law, the injunction application aforesaid are also disposed of accordingly without any specific order on injunction.
28. So far the interlocutory application No. 5527 of 2013 is concerned, the said application has been filed under Order 41 Rule 27 of the CPC by the appellant. This application has been filed for permission to adduce additional evidence in support of the fact regarding knowledge of Notified Area Committee, Sheohar about the pendency of the suit. So far this application is concerned, relates to limitation matter and as stated above before the second appellate Court, these applications are being pressed for the first time. Moreover the matter is being remanded to the trial Court now, therefore, whether there was sufficient cause or not for condoning the delay by the appellate Court is concerned, it is not material. Further the Hon''ble Supreme Court in the case of
